Sergei Magnitsky Will Be Convicted Posthumously

On April 5, the Tverskoy District Court in Moscow will resume hearings in the trial of Sergei Magnitsky. The prisoner’s box in the courtroom is empty—Magnitsky died in Matrosskaya Tishina prison in 2009. Author and analyst Alexander Podrabinek affirms that this trial, as well as being immoral and absurd, is also illegal.

It is hard to believe, but the trial of Sergei Magnitsky, who died in 2009, has started after all. The trial will inevitably end in a sentence, and hence Magnitsky will be convicted posthumously. This seems to be unprecedented. Indeed, Russia has its own special path. Nobody has ever thought before of bringing a charge against a deceased person, let alone of trying and convicting him.

It can hardly be said that there are no similar precedents in international law. Fugitives from crime are sometimes tried in absentia. However, they can voluntarily appear in court and defend themselves or hire lawyers to represent them in court. Defendants are also tried in absentia if they are mentally ill or disturbed. Nevertheless, they still have the right to be represented in court by an attorney. Totalitarian countries and dictatorships recur to trials in absentia in order to avoid wasting time and money to bring the defendant to court and complicate the procedure when the defendant's fate has already been decided. But to try a deceased person . . . !

Until 2011, there was a clause in Russia’s Criminal Procedural Code under which a criminal case would be terminated in the event of the suspect's or defendant's death. There was only one exception to this rule—the case remained open if further investigation was necessary for the rehabilitation of the deceased. However, the law did not stipulate who had the right to petition for rehabilitation in such cases. The law was not interested in the opinion of the dead person's relatives. This situation changed, however, in 2011.

Indeed, Russia has its own special path. Nobody has ever thought before of bringing a charge against a deceased person, let alone of trying and convicting him.

On February 25, 2010, a severe car accident that is still widely remembered took place on Leninsky Prospekt in Moscow. Lukoil Vice President Anatoly Barkov's Mercedes collided with a Citroën that was carrying Olga Alexandrina and prominent obstetrician Vera Sidelnikova. Both women died; Barkov got away with scratches. Neither the driver nor the security guard was injured. Much of the evidence pointed to the fact that the Mercedes had pulled into the oncoming lane and was, therefore, guilty, but the police blamed the crash on the late Alexandrina. The case was closed because of the suspect's death. Barkov stayed as clean as a new pin.

Alexandrina's relatives were not content with such an outcome. The name of the deceased was disgraced by her alleged guilt in the accident. The court could have exculpated her—but the case was closed. Besides, one might add, if the court had found her not guilty, her relatives could have demanded compensation for material damages from the real culprit. But what is more important is that keeping the case open would force the court to determine who, if not Alexandrina, was in fact guilty of the fatal crash. The real criminal could not have escaped responsibility. Is this not supposed to be the objective of justice?

Having gone through all the lower courts, the father of the deceased, Sergei Alexandrin, turned to the Constitutional Court of Russia for protection of his family's rights. He objected to the case being closed without his consent. He opposed the corresponding clause of the Criminal Procedural Code. He demanded that the case be fully investigated.

The Constitutional Court agreed with him that the Criminal Procedural Code contradicted the Constitution, which provides for state protection of a person's dignity and the right to defend his or her honor and reputation. On July 14, 2011, the Constitutional Court issued an ordinance stating that "when legislatively fixing guarantees of protection of the memory of the dead and worthy attitude to them . . . it is impossible not to take into consideration that interested persons, first of all close relatives of the dead suspect (accused), who insist on the continuation of criminal proceedings, have a lawful interest justifying further consideration of the case." The Constitutional Court noted that this interest "may . . . consist in the wish to protect both honor and dignity of the dead and good memory of him/her and their own honor and dignity, suffering in view of remaining uncertainty of the legal status of the dead in the case of discontinuance of criminal proceedings in respect of him/her on non-rehabilitating grounds."

And so died Paragraph 4 of Article 24 of the Criminal Procedural Code of the Russian Federation, which established that a case would be discontinued in the event of the death of a suspect or an accused. There is one considerable caveat though—for the case to be continued, the family of the deceased must insist that the proceedings are necessary for rehabilitation of the deceased and for the protection of the honor and dignity of his or her family.

Moscow’s Tverskoy District Court, where the cases against British citizen William Browder, who has been ignoring the Russian justice system, and Sergei Magnitsky, who has been dead for more than three years, are being heard, shows all the characteristics of the so-called "Basmanny justice."1 That is hardly a surprise; almost all Russian courts are the same.

Sergei Magnitsky was arrested after uncovering a tax fraud scheme involving Russian officials. According to Valery Borshchev, a member of the Presidential Human Rights Council, Magnitsky was beaten to death with rubber clubs.

In order to get around the Constitutional Court's requirement to get the consent of the family of the deceased in order to proceed with the case against Magnitsky, the prosecutor declared on the first day of the trial that "the case was reopened to decide the issue of Magnitsky's possible rehabilitation." Therefore, the Prosecutor's Office seems to be preoccupied with rehabilitating the falsely accused Magnitsky and Browder, and not at all with convicting them; if that is not so, the case against Magnitsky should be closed if his close relatives have no objections—and none of them do.

If the Prosecutor's Office closed the case against Magnitsky and continued the case against Browder, the law would have been formally observed. But they don’t really need Browder; they cannot carry out his sentence anyway. Justice has been suppressed by political calculations: the authorities need Magnitsky to be a “criminal” in order to justify their response to the Magnitsky laws in the United States and Europe and be able to tell the West: "By your actions, you are defending crime." Who will believe this farce is yet another question—but the authorities need self-justification. They are looking for a “symmetrical” response, and when good arguments are lacking, any will serve.

The question is this: How does the forthcoming conviction square with the Prosecutor's Office's declared wish to rehabilitate Magnitsky? It does not! The court will come to the conclusion that there are no grounds for rehabilitation. They will, however, find reasons for conviction. That is their game.

But it is a crooked one. The criminal case against Magnitsky was closed on November 30, 2009, because of his death. The investigation was reopened on August 9, 2011, in accordance with a directive of the General Prosecutor's Office of the Russian Federation that was based on the July 14, 2011, decision of the Constitutional Court. Otherwise, it would have been impossible to reopen the case. Chapter 18 of the Criminal Procedural Code of the Russian Federation, which determines the procedure for rehabilitation, does not give the right of rehabilitation to those who die during the investigation or the inquest. It is this section of the code that the Constitutional Court corrected by its aforementioned ordinance. But in order for the criminal case to remain open with a view to achieve rehabilitation, the consent of close relatives—not of the Prosecutor’s Office—is required. This is what the Constitutional Court of the Russian Federation has established, and this is the law.

One may assume that Judge Alisov already has the conviction in his pocket.

Despite all this, the trials of the late Sergei Magnitsky and the UK-based William Browder are underway. The prisoner's box is empty. No relatives of the defendants are present in the courtroom; nor are their lawyers. There are two state-appointed attorneys, who are worried about their uncertain legal position, the absurdity of the situation, and the lack of contact with defendant Browder and Magnitsky's relatives.

Nikolai Gerasimov, the lawyer appointed to represent Magnitsky's interests, noted that the defendant's legal representatives had declared their negative attitude toward the trial and refused to participate in it. According to Gerasimov, the Constitutional Court's ordinance that approved posthumous trials was incorrectly interpreted by investigators. The court had allowed such trials in order to permit the posthumous rehabilitation of defendants, but the family's wish is required to proceed, and in this case, the defendant's family did not express such a wish. Gerasimov suggested that a request be sent to the Constitutional Court to clarify "the procedure for a trial" in such a situation. In response, the prosecutor accused the defense of delaying the trial, and Judge Igor Alisov turned down the defense's request. One may assume that Alisov already has the conviction in his pocket.

In today's Russia, courts mostly play a decorative role. There is a judicial branch and a complicated judicial system; there are judges and bailiffs, court decisions, and convictions; there are courts of appeal and supervision—but all of this apparatus exists to create an appearance of justice in the country. The objective of creating an appearance is achieved, but there is no justice underneath it. There is only a sort of substitute justice, in which the law and its fundamental principles are easily replaced by money, a phone call from an important official, or political expediency.

1 The Basmanny District Court in Moscow has become a symbol of crooked and politically motivated justice.

News of the Day

On the night of February 27, Boris Nemtsov, one of the brightest leaders of the Russian political opposition, was killed in the center of Moscow. He was shot in the back several times from a bypassing car. There is no doubt that this murder was politically motivated: Nemtsov was one of the harshest and most vocal critics of the Kremlin’s policies and Vladimir Putin personally. On March 1, he planned to lead the anticrisis march in Moscow.

This is the highest profile murder in Russia in years.

The Institute of Modern Russia would like to extend most heartfelt condolences to Boris Nemtsov’s family and friends. RIP.

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